Kuechenmeister v. Kuechenmeister

• Decision Date: 28 February 2018
• Docket Number: Docket No.F–5836–11,2017–01872
• Citation: 68 N.Y.S.3d 913 (Mem),158 A.D.3d 801
• Parties: In the Matter of Maureen KUECHENMEISTER, respondent, v. Scott KUECHENMEISTER, appellant.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 801

68 N.Y.S.3d 913 (Mem)

In the Matter of Maureen KUECHENMEISTER, respondent,

v.Scott KUECHENMEISTER, appellant.

2017–01872

Docket No.F–5836–11

Supreme Court, Appellate Division, Second Department, New York.

Submitted January 29, 2018

February 28, 2018

Rhea G. Friedman, New York, NY, for appellant.

SHERI S. ROMAN, J.P., SANDRA L. SGROI, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal from an order of the Family Court, Richmond County (Peter F. DeLizzo, J.), dated January 13, 2017. The order denied the father's objections to (1) an order of disposition of that court (Gregory Gliedman, S.M.), dated September 20, 2016, made after a hearing, finding that the father had willfully violated a prior order of child support, and (2) an order of that court (Gregory Gliedman, S.M.), also dated September 20, 2016, which directed the entry of a money judgment in favor of the mother and against the father in the principal sum of $159,695.76 for child support arrears.

ORDERED that the order dated January 13, 2017, is affirmed, without costs or disbursements.

The mother commenced this proceeding seeking a determination that the father willfully violated a child support order. After a hearing, a Support Magistrate found that the father had willfully violated the support order and directed the entry of a money judgment for arrears in the principal sum of $159,695.76. An order of the Family Court dated January 13, 2017, denied the father's objections to the Support Magistrate's orders. The father appeals.

Resolution of issues of credibility, as well as the weight to be accorded to the evidence, are primarily questions to be determined by the factfinder, which saw and heard the witnesses. The factfinder's credibility determinations are entitled to great deference, and its factual findings should not be disturbed on appeal unless clearly unsupported by the record (see Matter of Binns v. Boyd, 63 A.D.3d 1058, 1059, 885 N.Y.S.2d 84 ; Matter of McCarthy v. Braiman, 125 A.D.2d 572, 510 N.Y.S.2d 3 ).

Here, in support of her petition, the mother presented prima facie evidence that the father willfully violated the support order (see Family Ct Act § 454[3][a] ; Matter of Powers v. Powers , 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; Matter of Kimbrough v. Murphy , 156 A.D.3d 640, 66 N.Y.S.3d 288 ; Matter of Rafferty v. Ettinger, 150 A.D.3d 1016, 55 N.Y.S.3d 145 ; Matter of Tolkinen v. Siewert , 130 A.D.3d 837, 12 N.Y.S.3d 559 ). The burden of going forward then shifted to the father to rebut the prima facie showing of a willful violation by offering competent, credible evidence of his inability to pay (see Matter of Powers v. Powers , 86 N.Y.2d at 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; Matter of Kimbrough v. Murphy, 156 A.D.3d 640, 66 N.Y.S.3d 288 ; Matter of Rafferty v. Ettinger , 150 A.D.3d 1016, 55 N.Y.S.3d 145 ). The father failed to sustain his burden of going forward by offering competent, credible evidence...